The court properly refused to charge section 1431-a of the Penal Law. The presumption set forth therein is unreasonable. There was no rational connection between what was proved and what the court and jury were asked to infer. That section must be read in conjunction with section 1431 of the Penal Law. When so read the proof must in some way connect a defendant with the condition of the meter. (People v. Mancuso, 255 N. Y. 463; Manley v. Georgia, 279 U. S. 1, 5.)
If this section is to be taken literally, a person to whom gas, electricity, water or steam is furnished through a meter which has been tampered with, when the meter erroneously records too small an amount, is presumed to be guilty of fraud. The consumer to whom the gas or other commodity is being furnished, may have no incentive to tamper with the meter for the reason that he may be *319paid for such service by a tenant or other person who would be the only one having an incentive to alter the condition of the meter.
The meter in this case was not in the basement or cellar, but was in a public hallway where any one might have tampered with it. There are many conditions here present which make this presumption unreasonable.
I, therefore, vote for affirmance of the judgment.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.